Why do we give some people a warning and others a ticket for speeding? If marijuana is illegal in North Carolina, why aren’t we arresting and charging someone in possession of a small amount for personal use? How do deputies decide?
Law enforcement officers have discretion in most situations. For example: I recently pulled over a driver after she passed me going 110 miles per hour. When I approached her car, I saw the passenger writhing in pain. While I knew the driver had broken the law, I now understood why. I escorted her to the hospital rather than sending her to traffic court.
Our general policy is to seize and destroy small amounts of marijuana but not to charge the person with a crime. Although people legally use marijuana recreationally in many states, in North Carolina, possession of a small amount of the drug is a Class 3 misdemeanor and typically results in a fine with no jail time. Taking someone to the magistrate’s office for that offense is a significant drain on a deputy’s time. It is more important for us to remain on patrol, responding to true public safety emergencies. Other jurisdictions in North Carolina make different choices and will arrest for any amount of marijuana. Communities set their own priorities. We choose to focus on drug traffickers moving large quantities of illegal substances—not those who might smoke a joint now and then.
There are also times when the law removes discretion. Under N.C.G.S. §50B-2, if a deputy has probable cause to believe someone has violated a protective order, he or she SHALL make a warrantless arrest. Shall is a powerful word. Where most laws give deputies authority, not a mandate to act, this one requires a specific action—even if the officer believes another course might be more appropriate. In these cases, the statute also limits the magistrate’s discretion to set the conditions of pretrial release. The alleged offender must be held in the detention center for a 48-hour cooling-off period.
Deputies also have no discretion when it comes to the duty to intervene. The Criminal Justice Reform bill, passed in September 2021, addresses the “blue wall of silence.” If a law enforcement officer witnesses a colleague committing what the observing person believes to be an unlawful act, such as the use of excessive force, he or she MUST step in or speak up. Additionally, the law requires the observing officer to report the incident to a superior within 72 hours.
Courts have made clear that an officer’s use of discretion must be judged based on the facts and circumstances as they appeared at the time—not what is later learned. Expecting an officer to distinguish a real gun from a toy weapon while standing 50 yards away is not reasonable. Expecting officers on scene to intervene when a fellow officer keeps a knee on a man’s neck for nine minutes is. Likewise, civilians should avoid inserting facts known to them or later discovered into their evaluation of a use-of-force incident. Regardless of whether the officer knew the person was a church deacon, a single father, or a cancer patient, such details have no bearing on whether the officer’s actions were appropriate.
Citizens exercise discretion as well. My cell phone number hangs on the wall in the public lobby of the Sheriff’s Office. I put it there because I trust people to know the difference between calling me in the middle of the night for an urgent matter and waking me up seeking a restaurant recommendation.
Civilians also exercise discretion when the decide to call law enforcement. Not every unfamiliar situation is a threat, and not every person who “looks out of place” is doing something wrong. Perception is shaped by experience—and sometimes by bias. Calls based on misinterpretation can divert deputies from true emergencies and create unnecessary encounters that escalate tensions rather than resolve them. People should report legitimate concerns promptly, but we all share a responsibility to pause, assess, and ensure that what we are seeing is truly a law enforcement matter before dialing 911.
The law does not account for every human circumstance, so we ask deputies to consider situations with judgment, context, and humanity. We deal with people—not just violations on paper. When deputies exercise discretion wisely, and when people extend it thoughtfully in return, trust grows, deputies are more effective, and our communities become safer.
